Eileen Brownlee, Attorney, Kramer and Brownlee, appearing on
behalf of the District.

ARBITRATION AWARD

The above-captioned parties, hereinafter referred to as the Union and the District,
respectively, are parties to a collective bargaining agreement which provides for final and
binding
arbitration of grievances. Pursuant to a request for arbitration, the Wisconsin Employment
Relations
Commission appointed the undersigned to decide a grievance. A hearing, which was
transcribed,
was held on September 23, 2005 in Cuba City, Wisconsin. On November 14, 2005, the
Union filed
an initial brief. On February 28, 2006, the District filed its brief. On March 22, 2006, the
Union
filed a reply brief, whereupon the record was closed. Based on the entire record, the
undersigned
issues the following Award.

ISSUE

The parties stipulated to the following issue:

Did the District violate the collective bargaining agreement when it hired Joyce
Donar for the cook position? If so, what is the remedy?

3.01 Policy: It shall be the policy of the Employer to recognize
seniority.

3.02 Definition. Seniority shall be defined as length of service with
the Employer,
commencing on the most recent date of hire. . . .

. . .

ARTICLE 4 ­ VACANCIES AND TRANSFERS

4.01 Job Posting: When a position becomes vacant or a new
position is created,
notice of such available position shall be posted for ten (10) working days. The
Employer retains the right to temporarily fill vacant positions at its discretion during
the posting and selection period. Vacancies will be posted on a designated bulletin
board in each school building. The notice shall include the date of the posting, a
description of the position available, the work hours of the position, the rate of pay
for the position, the qualifications required for the position, and shall be signed by
the District Administrator. A copy of the posting will be sent to the President of the
Union. . . .

4.02 Selection: A bargaining unit employee who applies
for a vacant
position, prior to the end of the posting period, shall be granted an interview for the
position, and, if qualified, may be awarded the position. In the event two or more
equally qualified bargaining unit employees shall apply for a position, the most senior
applicant shall be selected. The District retains the right to select the most qualified
applicant for any position. The District retains the right to determine the
qualifications needed for any vacant position.

. . .

ARTCLE 21 ­ MANAGEMENT RIGHTS

21.01 Management retains the rights of possession, care, control and
management that it has by law, and retains the right to exercise these functions under
the term of the collective bargaining agreement except to the extent such functions
and rights are restricted by the terms of this Agreement. The rights include, but are
not limited to, the following rights:

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. . .

c) To hire, promote, transfer, and schedule and assign employees in
positions within the school district;

The District operates a public school system in Cuba City, Wisconsin. The Union is
the
exclusive collective bargaining representative for the District's full-time and regular part-time
support personnel. Bette Olson is a bargaining unit employee.

This case involves the filling of a part-time cook position.

In March, 2005, the District had a vacancy for a part-time cook. The position was
posted
both internally and externally, meaning that existing bargaining unit employees, as well as
anyone
off the street, could apply. Four or five people applied for the position. One of those who
applied
was Bette Olson. Olson was the only bargaining unit employee who applied for the position.
The
rest of the applicants were not District employees (meaning they were outside applicants).

Two District officials interviewed four of the applicants. Olson was one of the
people
interviewed. The interviewers asked the same questions of each applicant. Both
interviewers rated
applicant Joyce Donar higher than they rated Olson.

Following the interviews, the District concluded that Donar was the most qualified
applicant
and offered her the position. She subsequently accepted it.

In April, 2005, Olson grieved the District's failure to give her the job which had
been
given
to Donar. If Olson had received the job, her work hours would have increased. The
grievance was
processed through the contractual grievance procedure and was ultimately appealed to
arbitration.

POSITIONS OF THE PARTIES

Union

The Union contends that the District violated the collective bargaining agreement
when it
hired Donar off the street for the assistant cook position. As the Union sees it, the District

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was contractually obligated to award the position to Olson, who was the only internal
applicant. The
Union elaborates as follows.

The Union acknowledges at the outset that the Management Rights clause gives the
Employer
the general right "to select employees." That said, it is the Union's view that the general
right just
noted is limited by the following sections in the contract: 3.01, 3.02, 4.01 and 4.02.
According to
the Union, when those sections are read together, they provide that qualified bargaining unit
applicants are entitled to fill a vacant position before the position is filled with someone from
the
outside, regardless of whether or not the District determines an outside applicant to be the
best
qualified. The Union submits that the only way the arbitrator can find to the contrary is if
he "dons
blinders" to the contract language just referenced. The Union addresses that language in the
order
just listed.

First, the Union relies on the language contained in Sections 3.01 and 3.02. It notes
that
Section 3.01 makes a broad policy statement, to wit: "It shall be the policy of the Employer
to
recognize seniority." It further notes that Section 3.02 then goes on to define seniority as
"length of
service with the Employer. . ." The Union argues that by not giving the assistant cook
position to
internal candidate Olson, the District failed to recognize her seniority with the District. The
Union
maintains that seniority is not a subjective standard; instead, it is a known quantity that can
be
measured precisely. The Union avers that outside job applicants have no seniority. It is the
Union's
position that when outside job applicants are awarded bargaining unit positions ahead of
bargaining
unit employees who are interested in the posting, as happened here, the District is not
"recognizing"
the seniority of bargaining unit employees, and thus is in violation of those contract
provisions.

Second, the Union relies on the language contained in Sections 4.01 and 4.02.
Section 4.01
is the Posting provision and Section 4.02 is the Selection provision. The Union notes that
the first
sentence of Section 4.02 unconditionally grants bargaining unit employees who apply for a
posted
position an "interview" and goes on to state that they "may" be awarded the position if they
are
"qualified." It acknowledges that the word "may" implies that they "may not" ultimately
receive the
position. The Union argues that is only logical because if there is more than one qualified
bargaining
unit employee who applies for the position, only one of the qualified employee applicants can
receive
the position. Moving on to sentences two and three, the Union submits that those sentences
deal
with what the Union calls "the complexity of employee applicant qualifications." The Union
reads
sentence two to say that seniority governs if there are two or more equally qualified
bargaining unit
employees. The Union reads the word "applicant" in the third sentence to refer to an
"employee
applicant" as opposed to anyone who applies for the position. The Union contends that its
interpretation, wherein the word "employee" is implied, is a plausible explanation because in
hybrid
seniority clauses there is a common interpretation known as the "head and shoulders"
standard
wherein a junior employee can be awarded a posted position if he is significantly better
qualified
than senior applicants. The Union argues that the District's interpretation of the word
"applicant"
(i.e. that it refers to anyone who applies and is determined to be the "most qualified
applicant") is
tortured because it can result in a forfeiture of seniority rights. The Union cites

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Elkouri for the proposition that when contract language is susceptible to two
constructions, and one
of those constructions constitutes a forfeiture and the other does not, arbitrators favor the
interpretation that avoids the forfeiture.

The Union therefore requests that the grievance be sustained. As a remedy, the
Union asks
that the assistant cook position be awarded to Olson along with full backpay.

District

The District contends it did not violate the collective bargaining agreement when it
hired
Donar for the assistant cook position. As the District sees it, it was not contractually
obligated to
award the position to Olson, who it acknowledges was the only internal applicant. The
District
elaborates as follows.

First, the Employer notes at the outset that since this is a contract interpretation case,
the
Union has the burden of proof in this matter. According to the District, in this case that
burden
requires that the Union show that the District's (hiring) decision was "discriminatory,
arbitrary,
unreasonable or capricious."

Second, the District avers that the Management Rights clause gives it the general
right
"to
select employees." Building on that premise, the Employer argues that that general right is
not
limited or contravened by any other part of the collective bargaining agreement, and
particularly by
Sections 4.01 and 4.02.

With regard to Section 4.01 (the Job Posting section), the District notes that it posted
the
assistant cook vacancy both internally and externally. According to the Employer, nothing in
Sec.
4.01 precludes it from doing that. Additionally, it notes that the Union did not object to
same.

Turning now to Sec. 4.02 (the Selection section), the District argues that nothing in
that
section gives bargaining unit employees who apply for a vacant position a guarantee that they
will
be awarded the position before outside applicants, even if they are qualified. To support that
premise, it relies on the last part of the first sentence which provides "if qualified, may be
awarded
the position." The Employer emphasizes that the word "may" is permissive ­ not
mandatory. Next,
the Employer calls the arbitrator's attention to the third sentence in Section 4.02 which
provides "the
District retains the right to select the most qualified applicant for any position." As the
Employer
sees it, that language clearly entitles it to hire the most qualified applicant for any vacant
position.
According to the District, the "applicant" that it selects to fill the vacancy can be a
bargaining unit
employee, but it does not have to be. It contends that what the Union is essentially asking
the
arbitrator to do is conclude that the word "applicant" is modified by the word "employee",
so that
employee applicants are given priority for vacant positions. The Employer avers that the
problem
with this proposed interpretation is that it modifies the collective bargaining agreement by
inserting
something into the agreement that currently is not there (namely, creating a priority for
bargaining
unit

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employee applicants where none currently exist). The Employer notes that there are
collective
bargaining agreements that limit applications for employment vacancies to bargaining unit
members,
or give priority in hiring to bargaining unit members, or limit selection of applicants to
bargaining
unit members. The Employer emphasizes that here, though, such language does not exist in
this
collective bargaining agreement. The District submits that if that is what the parties
intended, they
could have written language that said that. They did not. The District maintains it should
not be
inferred into the collective bargaining agreement via grievance arbitration.

In sum then, the District believes no contract violation occurred. It therefore asks
that the
grievance be denied.

DISCUSSION

At issue here is whether the District's hiring of Donar for the assistant cook position
violated
the collective bargaining agreement. The Union contends that it did while the District
disputes that
assertion. Based on the following rationale, I answer that question in the negative, meaning
that the
District's hiring of Donar did not violate the collective bargaining agreement.

. . .

My discussion begins with the following preliminary comments.

First, I am going to address the scope of this decision. In many cases where an
employer
awards a job to someone and an applicant who did not get the job grieves, the qualifications
of the
respective applicants are in issue. That is not the case here. This case does not involve
Donar's or
Olson's qualifications, or the process which the District used to evaluate their qualifications.
Since
qualifications are not at issue, I will not be using the reviewing standard oftentimes used by
arbitrators in qualification cases (i.e. whether the employer's selection decision was
discriminatory,
arbitrary, unreasonable or capricious). Instead, I will simply be deciding whether bargaining
unit
employees who post for a vacant position have a contractual right to be awarded the position
before
outside applicants, assuming they are qualified. This call obviously depends on the contract
language.

Second, in this particular contract interpretation case, the outcome is going to be
based
exclusively on the applicable contract language. Here's why. In some contract interpretation
cases,
the parties offer evidence external to the agreement to help the arbitrator interpret the
applicable
contract language. I am referring, of course, to the parties' past practice and bargaining
history. That
did not happen here. Specifically, no evidence was offered concerning either an alleged past
practice
or the parties' bargaining history. As a result, all I've got to work with is the language itself
and the
parties' arguments concerning same. Additionally, there are no factual disputes herein, so
this
decision is not going to be based on the burden of proof either.

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Third, in a contract interpretation case, the arbitrator's task is to determine if the
meaning of
the applicable contract language is clear and unambiguous, or whether it is ambiguous.
Language
is usually considered clear and unambiguous when it is susceptible to but one plausible
interpretation/meaning. Conversely, language is usually considered ambiguous when it is
capable
of being understood in two or more different senses, or where plausible arguments can be
made for
competing interpretations. If the language at issue here is found to be clear and
unambiguous, my
job is to apply its plain meaning to the facts. If the language is found to be ambiguous, my
job is to
then interpret it to discern what the parties intended it to mean, and then to apply that
meaning to the
facts.

In this case, neither side argues that the applicable contract language is ambiguous.
Instead,
both sides contend that the applicable contract language is clear and unambiguous and
supports their
position.

Before I address that language though, I am first going to note that a portion of the
Management Rights clause is applicable here. I am referring to Sections 21.01(c) and (i)
which give
the Employer the right, respectively, "to hire. . .employees" and "to select employees".
Given that
grant of general authority to the Employer to do those things, the obvious question to be
answered
is whether there are other contract provisions which limit or contravene that authority. The
Union
contends that there are, and cites Sections 3.01, 3.02, 4.01 and 4.02. Those sections will be
reviewed
in the order just listed.

My discussion on Sections 3.01 and 3.02 begins by noting what each section
explicitly says.
Section 3.01 says: "It shall be the policy of the Employer to recognize seniority." This
sentence says
in plain terms that the Employer's policy is to "recognize seniority." It does not elaborate
further.
The next section, Section 3.02, goes on to define seniority as the employee's "length of
service with
the Employer", commencing with their most recent date of hire. This sentence establishes a
precise
way of measuring an employee's seniority with the Employer. From a labor relations
perspective,
there is nothing remarkable about either of the provisions just noted. Each is a general
provision
commonly found in collective bargaining agreements. The Union argues that by not giving
the
position in question to internal candidate Olson, the District failed to "recognize" her
seniority with
the District. While the Union essentially invites me to make that decision by just looking at
the
contract language just noted, I decline to do so. Here's why. There is additional applicable
contract
language which has yet to be reviewed and considered, namely Sections 4.01 and 4.02. That
language has to be reviewed and considered too. The focus now turns to same.

Section 4.01, which is entitled "Job Posting", establishes a procedure that the
Employer has
to follow when it posts a job vacancy. In the context of this case, the Union does not
contend that
the District failed to follow any of the steps contained therein (i.e. that the position be posted
for the
requisite number of days, or posted on the requisite bulletin boards, or list the required
information
on the posting notice).

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While there is no dispute about the Employer's compliance with the posting steps just
noted,
the Employer calls attention to the absence of certain language from that provision. It is
this. In
some collective bargaining agreements, the Job Posting provision says that job vacancies will
only
be posted to internal (bargaining unit employee) applicants. Section 4.01 does not say that.
The
Employer avers that in reliance thereon, it posted the assistant cook vacancy at issue here
both
internally and externally. I find that nothing in Section 4.01 precludes the Employer from
doing that.

The focus now turns to Section 4.02 which is entitled "Selection". Broadly speaking,
that
section deals with the filling of job vacancies. I've decided to begin my analysis of that
section with
the following overview about what that section specifically says. The first sentence says two
things.
The first part of that sentence says that a bargaining unit employee who applies for a posted
position
"shall be granted an interview". The word "shall" is mandatory, so this language means that
a
bargaining unit employee who applies for a posting automatically gets an interview. Thus, a
bargaining unit employee is guaranteed an interview. The second part of that same sentence
then
goes on to say that the bargaining unit employee "if qualified, may be awarded the position."
The
word "may" is not mandatory; rather, it is permissive. That being so, all the second part of
the
sentence says is that a bargaining unit employee who applies for a vacancy "may" get it.
Whether
the bargaining unit employee who applies for a job gets it (i.e. the job) depends on whether
they are
deemed to be "qualified". (Note: The question of who makes that determination will be
addressed
later in this paragraph). The second sentence in Section 4.02 then says that if two or more
"equally
qualified bargaining unit employees" apply for a job, "the most senior applicant shall be
selected."
The next two sentences then deal with qualifications (specifically, who gets to make them and
who
decides which applicant is qualified). The third sentence says that the District retains the
right "to
select the most qualified applicant for any position." The fourth sentence says that the
District also
retains the right "to determine the qualifications needed for any vacant position." Taken
together,
these two sentences establish that the Employer gets to decide what the qualifications are for
a
position, as well as which applicant is "most qualified" to fill same.

Having just identified what Section 4.02 says, the focus now turns to its application
here.
I find that in the context of this case, sentences two and four are inapplicable. Here's why.
As noted
above, the second sentence deals with a factual situation where "two or more . . .
bargaining unit
employees" apply for a position. Here, though, just one bargaining unit employee applied
for the
assistant cook position (i.e. Olson), so the factual situation which that sentence contemplated
(i.e.
two or more bargaining unit employees applying) was not present here. Sentence four is not
applicable here because, as noted above, it deals with the qualifications set by the Employer
for a
job, and here the Union is not challenging the qualifications which the Employer set for the
assistant
cook position.

As a practical matter, those findings mean that just sentences one and three are
applicable
here. With regard to the first part of the first sentence, Olson was given an interview, so the
Employer complied with that requirement. With regard to the second part of that sentence, it
is
noted once again that all it says is that bargaining unit employees who apply

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"may" be awarded the job. The word "may" is not nearly as strong as the words
"will" or "shall".
That being so, the second part of that section does not give bargaining unit employees who
apply for
a job a guarantee that they will or shall be awarded the position ahead of outside applicants,
even if
they are qualified. Knowing this, the Union essentially hangs its hat, so to speak, on the
third
sentence. According to the Union, the word "applicant" in that sentence refers to an
"employee
applicant" as opposed to anyone who applies for the position and is ultimately determined to
be the
"most qualified". Thus, the Union contends that the word "employee" should be inferred
before the
word "applicant" in the third sentence, so that it refers to a bargaining unit employee
applicant. I
decline to make that inference. Here's why. Were I to do that (i.e. infer that the word
"applicant"
refers to an "employee applicant"), I would be inserting something into the collective
bargaining
agreement that presently is not there. What I am referring to, of course, is giving priority in
filling
vacancies to bargaining unit employee applicants over outside applicants. There are certainly
collective bargaining agreements that do that (i.e. give priority in filling vacancies to
bargaining unit
employees over outside applicants, or that limit selection of applicants to bargaining unit
employees).
However, such language is not found in this collective bargaining agreement. If that is what
the
parties intended, they could have included language in Section 4.02 or elsewhere that said
that
qualified bargaining unit employees will fill vacancies ahead of qualified outside applicants,
or that
qualified internal applicants will be offered the position prior to external candidates, or words
to that
effect. They did not. Since the parties did not specifically include such language in their
agreement,
I decline to infer its existence into the agreement. Consequently, I interpret the word
"applicant" in
the third sentence to refer to all applicants ­ both internal and external. While
bargaining unit
employees can certainly be applicants for job vacancies, they are not given priority in filling
vacancies over outside applicants under the existing contract language. That means that
when the
Employer selects "the most qualified applicant" to fill a vacancy, that individual can be either
an
internal or external applicant.

In this case, the District decided that the "most qualified applicant" for the assistant
cook
position was outside candidate Donar. The third sentence in Section 4.02 specifically
allowed the
District to make that decision. As a result, the District did not violate the collective
bargaining
agreement, and specifically Sections 3.01, 3.02, 4.01 or 4.02, when it did not give the
assistant cook
job to bargaining unit employee Olson, but instead hired outside applicant Donar for that job.

In light of the above, it is my

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AWARD

That the District did not violate the collective bargaining agreement when it hired
Joyce
Donar for the cook position. Therefore, the grievance is denied.